Filed 6/15/16 Certified for partial pub. 7/13/16 (order attached); reposted to provide corrected publication information

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JOSHUA TREE DOWNTOWN

BUSINESS ALLIANCE,

E062479

Plaintiff and Appellant, (Super.Ct.No. CIVDS1307794) v.

OPINION

COUNTY OF SAN BERNARDINO,

Defendant and Respondent;

DYNAMIC DEVELOPMENT, LLC,

Real Party in Interest and Appellant.

APPEAL from the Superior Court of San Bernardino County. Donald R. Alvarez,

Judge. Reversed.

Gresham, Savage, Nolan & Tilden, John C. Nolan, and Jonathan E. Shardlow for

Real Party in Interest and Appellant.

Law Office of Babak Naficy and Babak Naficy for Plaintiff and Appellant.

1 Bart W. Brizzee, Principal Assistant County Counsel, for Defendant and

Respondent.

Dynamic Development, LLC (Dynamic) sought to build a new retail store

(Project) in Joshua Tree. Residents of Joshua Tree vociferously opposed the Project.

They argued that it would clash with the town‟s artistic, independent, and rural character;

they also argued that it would cause various adverse environmental impacts, including

urban decay. Nevertheless, the County of San Bernardino (County) found that an

environmental impact report (EIR) was not required and approved the Project.

The Joshua Tree Downtown Business Alliance (Alliance) then filed this mandate

proceeding challenging the County‟s approval of the Project. The Alliance contended

that:

1. The County did not adequately consider whether the Project had the potential

to cause urban decay.

2. An EIR was required because there was substantial evidence to support a fair

argument that the Project could cause urban decay.

3. The County improperly attempted to conceal the fact that the intended occupant

of the store was Dollar General, a national retail chain.

4. The project was inconsistent with the Joshua Tree Community Plan

(Community Plan), which favors small, independent businesses.

The trial court agreed there was substantial evidence to support a fair argument

that the Project could cause urban decay; it therefore issued a writ of mandate directing

2 the County to set aside its approval of the Project. Dynamic has appealed. The Alliance

has cross-appealed, arguing that the trial court erred by rejecting its other contentions.

We will hold that the Alliance failed to establish any grounds for a writ of

mandate. Accordingly, we will reverse.

I

FACTUAL BACKGROUND

Dynamic proposes to build a 9,100 square foot general retail store, with associated

improvements such as parking and landscaping, on a 1.45 acre lot in Joshua Tree. In

August 2011, it applied for a minor use permit for the Project. The intended occupant of

the store was Dollar General.

The County solicited and received comments from owners of nearby properties.

These were overwhelmingly negative. A common theme was that the Project would be

“out of character and scale with the small business rural desert family-owned [and]

operated business community in Joshua Tree.”

In November 2011, at a community meeting, Dynamic, along with Dollar General,

gave a presentation regarding the Project. This triggered additional public comments.

In August 2012, the County circulated an initial study and a proposed negative

declaration. Based in part on the comments it received, the County decided to revise the

initial study and the proposed negative declaration. Among other things, it determined

that a conditional use permit (CUP), rather than a minor use permit, was required. It also

changed its environmental determination from a negative declaration to a mitigated

3 negative declaration. The revised initial study and mitigated negative declaration were

recirculated in November 2012. This produced still more public comments.

In connection with the upcoming public hearing, a County staff report

recommended adoption of the mitigated negative declaration and approval of the CUP.

The staff report also provided responses to the public comments on the revised initial

study.

On January 17, 2013, after a public hearing, the County Planning Commission

approved the CUP; it found that the Project did not have the potential to cause significant

adverse environmental impacts. It also specifically found that the Project was consistent

with the Community Plan.

The Alliance and others appealed to the County Board of Supervisors. In

connection with the appeal, yet more comments were submitted. On June 4, 2013, after a

public hearing, the County Board of Supervisors denied the appeal and upheld the

approval of the CUP.

II

PROCEDURAL BACKGROUND

The Alliance filed a petition for a writ of administrative mandate. It alleged,

among other things, that the County violated the California Environmental Quality Act

(Pub. Resources Code, § 21000 et seq.) (CEQA) by failing to analyze the Project‟s

potential for causing “urban decay and blight” and by failing to prepare an EIR despite

substantial evidence to support a fair argument that the project could cause urban decay.

4 It also alleged that the County had “deceptively” described the Project as a general retail

store rather than specifically as a dollar store. It further alleged that the Project was

inconsistent with the Community Plan.

After considering the parties‟ briefing and argument, the trial court issued an

extensive written ruling. It determined that the County did not fail to consider the

possibility of urban decay. However, the County did err by concluding that an EIR was

not required; the trial court found substantial evidence to support a fair argument that the

Project could cause significant urban decay. Next, it determined that the project

description was adequate, even though it described the project as a general retail store

rather than as a Dollar General store. Finally, it rejected the Alliance‟s contention that

the Project was inconsistent with the Community Plan.

The trial court therefore entered judgment in favor of the Alliance. It issued a writ

of mandate directing the County to set aside its approval of the Project and not to approve

the Project without an EIR. Dynamic appealed and the Alliance cross-appealed.

III

EVIDENCE THAT THE PROJECT COULD CAUSE URBAN DECAY

The Alliance contends that the County did not adequately consider the possibility

of urban decay, and the trial court erred by ruling otherwise. Conversely, Dynamic

contends that the trial court erred by ruling that there was substantial evidence to support

a fair argument that the Project could cause significant urban decay.

5 A. General CEQA Principles.

“The fundamental purpose of CEQA is to ensure „that environmental

considerations play a significant role in governmental decision-making‟ [citation].”

(Fullerton Joint Union High School Dist. v. State Bd. of Education (1982) 32 Cal.3d 779,

797.)

“CEQA review procedures can be viewed as a „“three-tiered process.”‟ [Citation.]

The first tier requires an agency to conduct a preliminary review to determine whether

CEQA applies to a proposed project. [Citation.] If CEQA applies, the agency must

proceed to the second tier of the process by conducting an initial study of the project.

[Citation.] Among the purposes of the initial study is to help „to inform the choice

between a negative declaration and an environmental impact report (EIR).‟ [Citation.] If

there is „no substantial evidence that the project or any of its aspects may cause a

significant effect on the environment,‟ the agency prepares a negative declaration.

[Citation.] Alternatively, if „“the initial study identifies potential significant effects on

the environment but revisions in the project plans „would avoid the effects or mitigate the

effects to a point where clearly no significant effect on the environment would occur‟ and

there is no substantial evidence that the project as revised may have a significant effect

on the environment, a mitigated negative declaration may be used.”‟ [Citation.] Finally,

if the initial study uncovers „substantial evidence that any aspect of the project, either

individually or cumulatively, may cause a significant effect on the environment‟

[citation], the agency must proceed to the third tier of the review process and prepare a

6 full EIR (environmental impact report). [Citation.]” (Save Our Big Trees v. City of Santa

Cruz (2015) 241 Cal.App.4th 694, 704-705.)

“In reviewing the adoption of a[ negative declaration], our task is to determine

whether there is substantial evidence in the record supporting a fair argument that the

Project will significantly impact the environment; if there is, it was an abuse of discretion

not to require an EIR. [Citation.] „“Whether a fair argument can be made is to be

determined by examining the entire record.”‟ [Citation.]” (Keep Our Mountains Quiet v.

County of Santa Clara (2015) 236 Cal.App.4th 714, 731.) “Although our review is de

novo and nondeferential, we must give the lead agency the benefit of the doubt on any

legitimate, disputed issues of credibility. [Citation.]” (Citizens for Responsible Equitable

Environmental Development v. City of Chula Vista (2011) 197 Cal.App.4th 327, 331.)

“An EIR is to disclose and analyze the direct and the reasonably foreseeable

indirect environmental impacts of a proposed project if they are significant. [Citations.]

Economic and social impacts of proposed projects, therefore, are outside CEQA‟s

purview. When there is evidence, however, that economic and social effects caused by a

project . . . could result in a reasonably foreseeable indirect environmental impact, such

as urban decay or deterioration, then the CEQA lead agency is obligated to assess this

indirect environmental impact. [Citations.] An impact „which is speculative or unlikely

to occur is not reasonably foreseeable.‟ [Citation.]” (Anderson First Coalition v. City of

Anderson (2005) 130 Cal.App.4th 1173, 1182.)

7 “[C]ourts have recognized that CEQA is not a weapon to be deployed against all

possible development ills. For example, although CEQA requires public agencies to

evaluate the possible negative environmental effects of constructing big-box retail stores

(e.g., air pollution from traffic, noise and light pollution, destruction of open space), the

fact that they may drive smaller retailers out of business is not an effect covered by

CEQA. [Citation.] Only if the loss of businesses affects the physical environment — for

example, by causing or increasing urban decay — will CEQA be engaged. [Citations.]”

(South Orange County Wastewater Authority v. City of Dana Point (2011) 196

Cal.App.4th 1604, 1614.)

CEQA does not define urban decay. The County, however, used the following

definition: “[U]rban decay is defined as, among other characteristics, visible symptoms

of physical deterioration that invite vandalism, loitering, and graffiti that is caused by a

downward spiral of business closures and multiple long term vacancies. This physical

deterioration to properties or structures is so prevalent, substantial, and lasting for a

significant period of time that it impairs the proper utilization of the properties and

structures, or the health, safety, and welfare of the surrounding community. The

manifestations of urban decay include such visible conditions as plywood-boarded doors

and windows, parked trucks and long term unauthorized use of the properties and parking

lots, extensive gang and other graffiti and offensive words painted on buildings, dumping

of refuse on site, overturned dumpsters, broken parking barriers, broken glass littering the

site, dead trees and shrubbery together with weeds, lack of building maintenance,

8 abandonment of multiple buildings, homeless encampments, and unsightly and

dilapidated fencing.”

The Alliance accepts and endorses this definition. Moreover, this definition is

consistent with the law that urban decay requires a significant effect on the physical

environment.

B. Additional Factual Background.

The following comments relevant to urban decay were made during the various

stages of the environmental review process.

1. Comments after the November 2011 community meeting.

Commenter Jonathan Ball stated: “A [Dollar General store] will bring more

detriment to the economic viability of other privately owned establishments in that an

imbalance toward business competition will not be supported by the small population of

the area. A lack of consumer base for existing businesses will be realized in the closure

of existing shops and a decline in local debt payments once existing stores are not able to

clear their overhead. An additional general store will spread the consumer field thinner

than it already is and create market strains on established businesses not likely to be

endured through the coming economic downturn.”

Commenter Mark Cranston owned a vacation rental company and a trucking

company. He asked rhetorically: “How many more businesses have to be shut down

before we understand that businesses like . . . Dollar General will not support the local

economy and bring nothing that we don‟t already have? How many times do we have to

9 see a big box store come into a small community [and] force other businesses into

bankruptcy to only fail as well?”

2. Comments on the November 2012 revised initial study and the

County’s responses.

The revised initial study did not specifically discuss urban decay. Several

commenters, including Kerri N. Tuttle, pointed this out. Tuttle asserted that, under two

specified court decisions, “CEQA review must assess the possibility of urban decay . . .

resulting from the economic impacts of the project.”

County staff responded: “[T]he Commenters have provided no evidence to

suggest that the Project will contribute to or cause urban decay. There is no factual

evidence that development of the subject site with a small retail store would result in the

closing of business, resulting in urban decay. The two court decisions referenced by the

Commenter were in regard to . . . „big-box‟ stores and other large retail projects. The

proposed Project . . . is not of the size, scope, and scale of . . . „big-box‟ retail stores; so to

compare the economic impact of the Project to the impacts associated with a „big-box‟

retail store that can be as large as 150,000 square feet plus i[s] not an accurate

comparison.”

County staff also reported that there was no evidence that the Project would have a

negative economic effect.

10 3. Comments in connection with the January 2013 Planning

Commission hearing.

According to commenter Julia G. Buckley: “Studies show that when formula

retail puts local stores out of business, blight and urban decay ensue.”

4. Comments in connection with the Alliance’s appeal.

Commenter Celeste Doyle identified herself as follows: “I am a member of the

. . . Alliance . . . . I am a 12-year resident of Joshua Tree, and a business owner.[1] I was

involved in the . . . Community Plan process and I sat on the Citizen Committee

appointed by the County to finalize that Plan. Before moving to Joshua Tree, I worked

for several years as an Assistant Attorney General in the Oregon Department of Justice,

providing General Counsel services to the state‟s Land Use, Transportation, and other

agencies.”

Doyle listed several local businesses, including Sam‟s Market, that had recently

made substantial investments in their premises. She then stated: “A low-end retail store

in Joshua Tree will not add jobs or sales tax revenues, and may lead to urban blight in our

small downtown district.

“A generic, corporate-owned, low-end retail store in Joshua Tree will not

„encourage and support small independent businesses,‟ but rather will take business away

from Sam‟s Market, our local, independent grocery store, the JT Trading Post and Mike‟s

1 At a previous public hearing, Doyle had stated that she owned a “small retail store” that sold camping gear and outdoor clothing and rented camping equipment.

11 Liquor Store, all of which already sell much of what the applicant says the likely tenant

will have to offer. The proposed project will also likely affect our three non-profit thrift

stores, which benefit the Morongo Hospice, needy and homeless women and children,

and the local public hospital.

“A Dollar General store will . . . take sales away from existing, locally-owned

businesses and our non-profit [t]hrift stores. This shift will lead some of these local

stores and businesses to close: They will no longer pay sales taxes, they will lay-off their

employees, and they will empty their buildings. Net retail sales in Joshua Tree will not

increase and the net number of jobs in Joshua Tree will not increase, but the number of

empty storefronts likely will increase.

“ . . . Furthermore, the closed storefronts will likely stand empty for a very long

time, degrading the town‟s appearance and vitality, inviting vandalism and leading to

urban blight.”

Finally, she asserted: “Joshua Tree residents can already purchase much of what

the proposed retail store will offer in local markets. What can‟t be found in Joshua Tree

can be found only 4 miles away on Highway 62 in Yucca Valley. Just a five-minute

drive, or a ten-minute bus-ride, gets Joshua Tree residents to the intersection of Hwy 62

and Balsa Ave, where they routinely shop at a large grocery store (Stater Brothers), a

Walmart, a Walgreens[,] and a Dollar Tree [s]tore, as well as a J.C. Penn[e]y and several

12 smaller retailers. Only another mile down the road, and a few bus stops away, is a large,

new Rite-Aid, a Vons [s]upermarket and other retailers.” (Fn. omitted.)2

C. Failure to Consider Urban Decay.

1. The trial court’s ruling.

The trial court ruled that the County did not “fail[] to consider whether economic

impacts would result in urban decay. The County‟s conclusion was that the Project

would not have a negative economic impact on the environment and it flows from such

conclusion that urban decay would not result.”

2. Discussion.

“[T]he failure of an initial study to disclose the evidence supporting particular

findings [is not] necessarily . . . fatal to the resulting negative declaration. There is „no

authority . . . that an initial study is inadequate unless it amounts to a full-blown EIR

based on expert studies of all potential environmental impacts. If this were true, the

Legislature would not have provided in CEQA for negative declarations.‟ [Citation.]”

(Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359, 1378, fn. omitted.) “[T]he

ultimate issue is not the validity of the initial study, but rather the validity of the lead

agency‟s adoption of a negative declaration.” (Id. at p. 1379.)

“In examining the record for . . . substantial evidence, the courts recognize the

public agency‟s responsibility for creating an adequate record. Deficiencies in the record

2 Doyle had also made some of the same points earlier, in comments on the November 2012 revised initial study.

13 due to the public agency‟s lack of investigation „may actually enlarge the scope of fair

argument by lending a logical plausibility to a wider range of inferences.‟ [Citation.]

However, it remains the appellant‟s burden to demonstrate by citation to the record the

existence of substantial evidence supporting a fair argument of significant environmental

impact. [Citation.]” (Leonoff v. Monterey County Bd. of Supervisors (1990) 222

Cal.App.3d 1337, 1348-1349.) “„An absence of evidence in the record on a particular

issue does not automatically invalidate a negative declaration. “The lack of study is

hardly evidence that there will be a significant impact.”‟ [Citation.]” (Gentry v. City of

Murrieta, supra, 36 Cal.App.4th at p. 1379.)

Here, as the trial court ruled, the County did consider urban decay; it simply

concluded that there was no evidence that the Project would have a negative economic

impact, and therefore no evidence that it would cause urban decay.

The County staff report stated: “[E]conomic impacts and urban decay are not

among the categories listed within the CEQA Guidelines Appendix G checklist.[3] Thus,

in the absence of any other significant impacts, there are no impacts to be „traced‟

through a causal relationship to economic changes. [Mitigated negative declarations]

may not be prepared for projects with impacts that cannot be mitigated to below a level of

3 “CEQA Guidelines Appendix G provides an environmental impact checklist form that lead agencies may use in preparing an initial study when deciding whether to adopt a negative declaration or prepare an EIR for a project. [Citation.]” (1 Kostka & Zischke, Practice under the Cal. Environmental Quality Act (2d ed. 2015) § 13.15, p. 13-15.)

14 significance; this is why economic impact analyses are sometimes seen within EIRs, but

not within [mitigated negative declarations].”

The Alliance takes this to mean that the County refused to consider the possibility

of urban decay solely because Appendix G to the Guidelines did not include a checkbox

for it. The County‟s statement, taken as a whole, however, means that economic impacts,

standing alone, are not sufficient to require an EIR, and hence are not reflected in

Appendix G; they may require an EIR only if they cause other significant impacts, which

would be reflected in Appendix G. This is consistent with the law, as discussed in part

III.B, ante.

The Alliance responds that “Appendix G is only an illustrative checklist, not an

exhaustive list of all potentially significant environmental impacts under CEQA.” (See 1

Kostka & Zischke, supra, § 13.15, p. 13-16.) Nevertheless, it does include the broad

catchall question, “Does the project have environmental effects which will cause

substantial adverse effects on human beings, either directly or indirectly?” Thus, the

County was correct in concluding that, if the answer to that question was “no,” then the

mere fact that the Project might have economic impacts did not require an EIR.

The Alliance also claims that the County refused to consider the possibility of

urban decay because it reasoned — incorrectly, in the Alliance‟s view — that the Project

was not a “big box” store and that only a “big box” store could cause urban decay.

Actually, the County staff report stated: “Based on staff‟s experience and research, the

Project is not a „Big Box‟ retailer, and no evidence exists otherwise to suggest that the

15 development will have a negative economic effect on the community.” (Italics added.)

Thus, while the County properly considered the fact that the Project was not a “big box”

store, that was not the end of its analysis.

In sum, then, the County did not fail to consider urban decay; it did consider it, but

it concluded that there was no evidence that the Project would cause either negative

economic impacts or urban decay. We proceed to review this finding.

D. Evidence Regarding Urban Decay.

1. The trial court’s ruling.

The trial court cited, discussed, and relied on Doyle‟s comments. It concluded:

“Given Ms. Doyle‟s community involvement and knowledge of the downtown business

community, the cited discussion about local businesses, the amount of money invested in

such businesses, and the surrounding business community presents substantial evidence

in the form of facts and reasonable assumptions predicated upon such facts to support a

fair argument that the Project may have a significant environmental effect in the form of

urban decay. She discusses that general retail needs are being met by existing local retail

stores and nearby larger stores. Therefore, this retail sales store will take sales away from

existing businesses. A statement regarding downtown store closures is based on this

business owner‟s knowledge of the downtown market and existing demand. In addition,

given the level of investment discussed, a reasonable assumption could be made that if

these businesses close, they will cause long-term vacancies of retail space resulting in

degradation of the town‟s appearance and blight, which would support a conclusion of a

16 physical deterioration. While Ms. Doyle may not be an expert in a traditional sense, her

experience and observations regarding the local business community and retail markets

demonstrate[] sufficient relevant personal observations that consist[] of facts and

reasonable assumptions predicated upon such facts.”

2. Opinion evidence under CEQA.

“Under CEQA, „substantial evidence‟ is „enough relevant information and

reasonable inferences from this information that a fair argument can be made to support a

conclusion, even though other conclusions might also be reached.‟ [Citation.] . . .

Substantial evidence includes facts, reasonable assumptions predicated upon facts, and

expert opinion supported by facts. [Citations.] It does not include „[a]rgument,

speculation, unsubstantiated opinion or narrative, [or] evidence which is clearly

inaccurate or erroneous . . . .‟ [Citations.]” (North Coast Rivers Alliance v. Kawamura

(2015) 243 Cal.App.4th 647.) “Complaints, fears, and suspicions about a project‟s

potential environmental impact likewise do not constitute substantial evidence.

[Citations.]” (1 Kostka & Zischke, supra, § 6.42, pp. 6-47-6-48.)

“Members of the public may . . . provide opinion evidence where special expertise

is not required. [Citations.]” (1 Kostka & Zischke, supra, § 6.42, p. 6-46.2.) However,

“[i]nterpretation of technical or scientific information requires an expert evaluation.

Testimony by members of the public on such issues does not qualify as substantial

evidence. [Citations.]” (Id. at p. 6-47.) “[I]n the absence of a specific factual foundation

in the record, dire predictions by nonexperts regarding the consequences of a project do

17 not constitute substantial evidence. [Citations.]” (Gentry v. City of Murrieta, supra, 36

Cal.App.4th at p. 1417.)

Here, Doyle was not an expert in any relevant area. Indeed, the trial court

acknowledged this (in a backhanded way) by conceding that she “may not be an expert in

a traditional sense . . . .” She was a business owner and a lawyer. She was not an

economist; she did not claim so much as an MBA. Thus, she was not qualified to opine

on whether the Project would cause urban decay. In addition, she did not offer any

particular factual basis for her opinions. She did not claim that her business or any other

business in Joshua Tree had ever actually suffered from competition with a national

chain; she had not taken any surveys or done any studies. Thus, whether viewed as lay or

expert opinions, her conclusions were speculative.

It might seem to be only a matter of common sense that a new store would reduce

the sales of nearby stores selling similar goods. However, it is also possible that a new

store would draw more shoppers into the area, and that some of them would make a

purchase at an established local store — either instead of or in addition to a purchase at a

Dollar General. There are sound reasons why otherwise competing businesses would

choose to locate near each other. (See K. Steif, Why Do Certain Retail Stores Cluster

Together? , as of Apr. 4, 2016.)

Even more important, the mere fact that a new store might cannibalize part of

other stores‟ sales does not mean that urban decay would result. Common sense alone

tells us nothing about the magnitude of this effect. The other stores might be able to

18 continue in business. If worse came to worst and they went out of business, a more

efficiently run store of the same type or a different type of store might move in. The

property might be turned to an entirely different use, such as office or residential. And

even if a handful of properties were to remain permanently vacant, the result would not

necessarily be the kind of change to the physical environment that implicates CEQA.

The limited factual observations that Doyle did offer actually cut against her

opinions. First, she noted that specific local businesses had recently made substantial

physical investments. For example, Sam‟s Market was “renovating its building inside

and out, including new refrigeration and freezer units, expanded fresh food areas, and a

new section of the store offering fresh coffee and other beverages, and hot food-to-go.

The project included improvements to the parking lot, too, including resurfacing, new

protective curbs, and striping . . . .” This seems inconsistent with a conclusion that Sam‟s

Market was operating so close to the margin that competition would drive it out of

business.

Second, Doyle observed that residents of Joshua Tree could already shop at chain

stores some four or five miles away in Yucca Valley, including a Stater Brothers, a

Walmart, and a Walgreen‟s. This suggests that the businesses in Joshua Tree had already

proved able to withstand competition from national chains. In addition, as Dynamic

points out, this suggests that local residents are “underserved,” resulting in “leaked

demand.” If so, then “the proposed Project could . . . retain revenue within Joshua Tree

that would otherwise leak outside the community.”

19 Finally, as already noted, “we must give the lead agency the benefit of the doubt

on any legitimate, disputed issues of credibility. [Citation.]” (Citizens for Responsible

Equitable Environmental Development v. City of Chula Vista, supra, 197 Cal.App.4th at

pp. 330-331.) Here, at a minimum, there were legitimate issues regarding the credibility

of Doyle‟s opinions. Hence, the County could deem them not substantial evidence.

We therefore conclude that the trial court erred by ruling that the County

improperly adopted a negative declaration.

IV

DISCLOSURE REGARDING DOLLAR GENERAL

The Alliance contends that the County violated CEQA by attempting to hide the

fact that the intended occupant of the Project was Dollar General.

A. Additional Factual and Procedural Background.

Dynamic‟s permit application described the proposed project as a “[g]eneral

[r]etail [b]uilding (Dollar General).” It stated: “Dollar General is a small-box value

retailer that stands for convenience, quality brands and low prices. With over 9,600

locations in 35 states throughout the United States, we are a Fortune 500 company, with a

NYSE ticker symbol („DG‟). Our wide selection of merchandise ranges from

convenience foods such as milk, eggs and soft drinks to laundry detergent, paper products

20 and health & beauty items to socks, underwear and clothing apparel. Roughly a fourth of

[its] merchandise sells for a dollar or less.”4

In a notice to nearby property owners, which invited them to comment, the County

described the Project as “minor use permit to establish a 9100 sq. ft. retail store (Dollar

General) on 1.45 acres.” (Capitalization altered.) Many of the comments that the County

received in response referred specifically to Dollar General.

As already mentioned, Dollar General representatives made a presentation at a

community meeting.

The revised initial study described the Project only as a “general retail store”

rather than as a Dollar General store. However, it attached an appendix entitled “Dollar

General Store Project.” It also included diagrams of the “Proposed Dollar General

Building” (capitalization altered) and reports entitled “Proposed Dollar General.” Once

again, most commenters referred to the fact that the intended occupant was Dollar

General.

A few commenters — even though they themselves mentioned Dollar General —

nevertheless complained that the intended occupant had not been disclosed.

The County responded: “The applicant informed County staff that no specific

tenant or end user had been identified for the building. Thus, the Initial Study did not

4 Thus, Dollar General is not literally a “dollar store,” at which every item costs a dollar or less.

21 identify any prospective tenants or end users as that would have been speculative on the

part of County staff.

“Tenant-specific review of a project is not required under CEQA. As stated by the

court in Maintain Our Desert Environment v. Town of Apple Valley (4th Dist. 2004)

[124] Cal.App.4th [430] at 444: „So long as the project is approved, CEQA has no

concern about who uses it. If CEQA compliance required the identification of the project

end user, a new EIR would need to be considered every time property was sold or a

different tenant moved into a building, regardless of the use to which the property was to

be put. In addition to the problems listed above, such a requirement also violates the

standard of efficiency required by CEQA.‟ This principal [sic] is based on the premise

that land use approvals run with the land and do not belong to the end-user. [Citations.]

Here, the county reviewed all potential environmental impacts that could occur from a

9,100 square foot general retail user, which would not significantly differ based on the

identity of the tenant.” (Italics altered.)

B. The Trial Court’s Ruling.

The trial court ruled: “[The Alliance] does not demonstrate that a Dollar General

presents different environmental impacts from the usual general retail store. The

description of the store as a general retail store is not demonstrated to be inadequate and

sufficiently discloses the type of retailer envisioned.”

22 C. Discussion.

The Alliance does not claim that the County succeeded in hiding the identity of the

intended occupant — only that it attempted to do so. Indeed, the Alliance concedes that

there was “considerable evidence about the identity of the intended tenant of the retail

store.” Under CEQA, unlike under the criminal law, there is no doctrine of attempt.

Even assuming that the County had to disclose the fact that Dollar General was the

intended occupant, it did so adequately.

Separately and alternatively, we agree with the trial court that the County did not

have to disclose this fact.

A lead agency that is preparing either an EIR or a negative declaration must give

public notice (Pub. Resources Code, § 21092, subd. (a)), which must include “a brief

description of the proposed project . . . .” (Id., subd. (b)(1).) In Maintain Our Desert

Environment v. Town of Apple Valley, supra, 124 Cal.App.4th 430, we held that this does

not require disclosure of the end user of the project: “The key word here is „brief.‟ . . .

[I]n choosing to use that word, the Legislature suggested that the project description

contained in the public notice need not be as extensive as the description in the EIR itself,

but need only be a brief, compact summary without elaboration or detail. We cannot

presume that it intended that the project description do more than necessary to fulfill the

purpose of the statute. Ultimately, that aim is to alert the public of a project‟s purpose

and location so that interested persons may further review and comment upon its

potential environmental impacts, if they so desire. It is not necessary then, to effectuate

23 the purpose of the statute that the phrase „brief description of the proposed project‟ be

defined to require disclosure of the end user of the project. We may not read into a

statute more than what the Legislature has plainly stated therein. [Citation.]” (Id. at

pp. 441-442.)

We also held that the EIR itself did not have to identify the end user. (Maintain

Our Desert Environment v. Town of Apple Valley, supra, 124 Cal.App.4th at pp. 443-

449.) We considered but rejected various arguments as to why the failure to identify the

end user supposedly “implicate[d] potential physical environmental impacts.” (Id. at

p. 444; see also id. at pp. 444-449.) Thus, arguably, we left the door open to the

possibility that, in some future case, the identity of the end user would have to be

disclosed, because it was “environmentally relevant.” (See id. at p. 448.) This, however,

is not that hypothetical case. Dollar General is a general retailer. The Project was

described as a general retail store.

The Alliance argues that “the identity of the tenant was [relevant] to the County‟s

environmental review of the Project” because “a large national chain store such as Dollar

General simply did not fit the unique character of Joshua Tree.” However, this was not

an environmental effect within the bailiwick of CEQA. Rather, it was a matter of taste or

preference best addressed through the political process. The Alliance does not suggest

any reason why occupancy by Dollar General would cause adverse environmental

impacts above and beyond occupancy by any other general retailer.

24 Finally, the Alliance argues that the identity of the tenant was relevant to whether

the Project was consistent with the Community Plan. However, as we will discuss in

more detail in part V.C, post, inconsistency with the Community Plan is not, in itself, a

violation of CEQA. Accordingly, CEQA did not require disclosure of the identity of the

tenant.

In sum, then we conclude that the negative declaration was not undermined by any

failure to identify Dollar General.

V

CONSISTENCY WITH THE COMMUNITY PLAN

The Alliance contends that the trial court erred by ruling that the Project was

consistent with the Community Plan.

A. Additional Factual and Procedural Background.

The Community Plan was part of the County‟s general plan. It identified broad

“[g]oals” in areas such as land use (“LU”) and economic development (“ED”); each goal

was associated with a number of more specific “[p]olicies.”

In this appeal, the Alliance asserts that the Project was inconsistent with the

following goals and policies:

Goal JT/ED 1: “Preserve and protect Joshua Tree‟s unique and evolving

community atmosphere, artistic base and natural surroundings while providing jobs and

improving its tax base.”

Policy JT/ED 1.3: “Encourage and support small independent businesses.”

25 Policy JT/ED 1.4: “Support commercial development that is of a size and scale

that complements the natural setting, is compatible with surrounding development and

enhances the rural character by incorporating natural desert landscape elements.”

Goal JT/ED 4: “Commercial uses and commercial zoning districts within the

community shall be of small scale as needed to provide goods and services to residents

and travelers, and shall not be of regional scale.”

Policy JT/ED 4.1: “Commercial development shall be compatible with the rural

environment, and shall protect the quality of residential living.”

When the Planning Commission approved the CUP, it found that:

“The [P]roject, as proposed, is designed to be consistent with the goals of the

Joshua Tree Community Plan. Specifically, the Project meets the following goals:

“Goal JT/LU 2: Support development of the existing downtown area of Joshua

Tree as a focal point and core activity center within the community.

“Goal JT/LU 3: Enhance commercial development within the plan area that is

compatible in type and scale with the rural desert character, is located appropriately, and

meets the needs of local residents and visitors.”

B. The Trial Court’s Ruling.

The trial court ruled that the Alliance had not shown that the Project was

inconsistent with the Community Plan: “[F]air argument is not the standard. [The

Alliance] must demonstrate a finding of consistency is not supported by substantial

evidence in light of the whole record. To carry its burden it is not sufficient for [the

26 Alliance] to cite only to opposing comments. [The Alliance] was required to demonstrate

that based on all relevant evidence, a finding of consistency could not reasonably be

made. [Citation.] [¶] Given the deficiencies in [the Alliance]‟s argument, the court

denies the writ petition based on inconsistency with the . . . Community Plan.”

C. The County Properly Found That the Project Was Not Inconsistent with the

Community Plan.

“Each county is required to adopt a „comprehensive, long-term general plan for

. . . [its] physical development . . . .‟ [Citation.] The plan must include, inter alia, a

statement of policies and nine specified elements: land use, circulation, housing,

conservation, open-space, seismic safety, noise, scenic highway, and safety. [Citation.]”

(Resource Defense Fund v. County of Santa Cruz (1982) 133 Cal.App.3d 800, 806.)

We may assume, without deciding, that state law prohibits the County from

issuing a CUP for a project unless the project is consistent with the general plan.

(Compare Neighborhood Action Group v. County of Calaveras (1984) 156 Cal.App.3d

1176, 1184-1186 [state-law consistency requirement applies to use permit] with Hawkins

v. County of Marin (1976) 54 Cal.App.3d 586, 594-595 [issuance of use permit does not

require consistency review].) Even if not, under the County‟s own Development Code,

before issuing a CUP, it must find that “[t]he proposed use and manner of development

are consistent with the goals, maps, policies, and standards of the General Plan and any

applicable community or specific plan.” (San Bernardino County Code (2007)

§ 85.06.040(a)(4), p. 5-27.)

27 “„[S]tate law does not require precise conformity of a proposed project with the

land use designation for a site, or an exact match between the project and the applicable

general plan. [Citations.] Instead, a finding of consistency requires only that the

proposed project be “compatible with the objectives, policies, general land uses, and

programs specified in” the applicable plan. [Citation.] The courts have interpreted this

provision as requiring that a project be “„in agreement or harmony with‟” the terms of the

applicable plan, not in rigid conformity with every detail thereof. [Citation.]‟

[Citation.]” (Save Our Heritage Organisation v. City of San Diego (2015) 237

Cal.App.4th 163, 185-186.)

Preliminarily, we must determine the applicable standard of review. The Alliance

claims that “[a] Project‟s inconsistencies with local plans and policies constitute

significant impacts under CEQA.” Thus, it contends that we should treat this as a CEQA

issue and review it under the fair argument standard — i.e., if a fair argument can be

made that the Project is inconsistent with the Community Plan, then the County erred by

adopting a negative declaration and must prepare an EIR.

In support of its claim that the fair argument standard applies, the Alliance cites

Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903. However, as the

leading CEQA treatise states, Pocket Protectors stands for the proposition that

“[e]vidence that a project is inconsistent with land use standards adopted to mitigate

environmental impacts can support a fair argument that a project might have a significant

adverse effect.” (1 Kostka & Zischke, supra, § 6.56, p. 6-60.1, italics added.) “The

28 decision in Pocket Protectors should not be interpreted to hold that any claim of

inconsistency with an applicable land use plan or policy requires an environmental

impact report. In Pocket Protectors, several factors in combination were important in the

court‟s holding that there was a fair argument of significant impact based on the land use

consistency issues. These factors included (1) that the governing land use standards were

adopted in part for the purpose of mitigating environmental impacts, and (2) that the

project proposed an entirely different type of housing than was originally envisioned in

the development of the land use standards.” (Ibid., italics added.)

Here, the goals and policies on which the Alliance relies were not adopted to

mitigate environmental impacts. Rather, they are economic development goals, adopted

to preserve the small-town, rural atmosphere that residents of Joshua Tree prefer. Any

inconsistency between the Project and these aspects of the Community Plan simply does

not implicate CEQA.

The Alliance also cites Endangered Habitats League, Inc. v. County of Orange

(2005) 131 Cal.App.4th 777. However, that case merely held that a county‟s approval of

a proposed project (which consisted of two area plans and an amendment to a specific

plan, id. at p. 781) was invalid because the project was inconsistent with the applicable

general plan. (Id. at pp. 782-791.) It did not hold that the inconsistency violated CEQA.

(See ibid.) Moreover, it did not apply the fair argument standard of review. (See id. at

p. 782.)

29 Finally, the Alliance points out that an EIR must “discuss any inconsistencies

between the proposed project and applicable general plans, specific plans and regional

plans.” (Guidelines, § 15125(d).) However, there is no provision that any such

inconsistencies necessarily constitute significant environmental impacts. Moreover, here,

the County adopted a negative declaration, not an EIR; there is no similar requirement

that applies to a negative declaration.

Accordingly, we do not apply the CEQA fair argument standard of review.

Rather, we apply the usual standard that applies to a claim of inconsistency with a land

use plan: “„[A] governing body‟s conclusion that a particular project is consistent with

the relevant general plan carries a strong presumption of regularity that can be overcome

only by a showing of abuse of discretion.‟ [Citations.] „An abuse of discretion is

established only if the [governing body] has not proceeded in a manner required by law,

its decision is not supported by findings, or the findings are not supported by substantial

evidence. [Citation.] We may neither substitute our view for that of the [governing

body], nor reweigh conflicting evidence presented to that body. [Citation.]‟ [Citation.]

This review is highly deferential to the local agency, „recognizing that “the body which

adopted the general plan policies in its legislative capacity has unique competence to

interpret those policies when applying them in its adjudicatory capacity. [Citations.]

Because policies in a general plan reflect a range of competing interests, the

governmental agency must be allowed to weigh and balance the plan‟s policies when

applying them, and it has broad discretion to construe its policies in light of the plan‟s

30 purposes. [Citations.] A reviewing court‟s role „is simply to decide whether the [local]

officials considered the applicable policies and the extent to which the proposed project

conforms with those policies.‟ [Citation.]” [Citation.]‟ [Citation.]” (Friends of Lagoon

Valley v. City of Vacaville (2007) 154 Cal.App.4th 807, 816-817.)

“[I]t is important to keep in mind the deferential nature of our review. It is not for

us to substitute our judgment for that of a local agency in making a determination of

consistency; rather, the agency‟s determination „comes to this court with a strong

presumption of regularity.‟ [Citation.] „Once a general plan is in place, it is the province

of elected [agency] officials to examine the specifics of a proposed project to determine

whether it would be “in harmony” with the policies stated in the plan. [Citation.] It is,

emphatically, not the role of the courts to micromanage these development decisions.‟

[Citation.] Thus, as long as the [local agency] reasonably could have made a

determination of consistency, [its] decision must be upheld, regardless of whether we

would have made that determination in the first instance.” (California Native Plant

Society v. City of Rancho Cordova (2009) 172 Cal.App.4th 603, 638.)

“We review the agency‟s decision regarding consistency with the general plan

„directly, and are not bound by the trial court‟s conclusions. [Citations.]‟ [Citation.] „A

[local agency]‟s findings that the project is consistent with its general plan can be

reversed only if it is based on evidence from which no reasonable person could have

reached the same conclusion. [Citation.]‟ [Citation.] Thus, the party challenging a [local

agency]‟s determination of general plan consistency has the burden to show why, based

31 on all of the evidence in the record, the determination was unreasonable. [Citation.]”

(Pfeiffer v. City of Sunnyvale City Council (2011) 200 Cal.App.4th 1552, 1563.)

In applying these standards, “the nature of the policy and the nature of the

inconsistency are critical factors to consider.” (Families Unafraid to Uphold Rural etc.

County v. Board of Supervisors (1998) 62 Cal.App.4th 1332, 1341.) A “clear”

inconsistency with even a single “fundamental, mandatory and specific land use policy”

may be “enough to scuttle a project.” (Id. at pp. 1341-1342.) By contrast, a local agency

has “„some discretion‟” when it comes to a relatively “amorphous” policy (such as a

policy of “„encourag[ing]‟ development „sensitive to natural land forms, and the natural

and built environment.‟ [Citation.]”). (Id. at p. 1341.)

The Alliance argues that the Project is inconsistent with Policy JT/ED 1.3

(“[e]ncourage and support small independent businesses”) and Policy JT/ED 1.4

(“[s]upport commercial development that is of a size and scale that . . . is compatible with

surrounding development”) because it competes with and may harm established local

businesses. As we held in part III.D.2, however, there was not even sufficient evidence

to support a fair argument that the Project would put local competitors out of business.

The mere fact that the Project may compete with established local businesses does not

make it inconsistent with the Community Plan. The Community Plan establishes a policy

of encouraging and supporting small independent businesses; it does not require the

County to reject all businesses that are not both small and independent. “Encourage” and

“support” are precisely the sort of amorphous policy terms that give a local agency some

32 discretion. (Families Unafraid to Uphold Rural etc. County v. Board of Supervisors,

supra, 62 Cal.App.4th at p. 1341.)

The Alliance also argues that the Project is inconsistent with these policies

because, at 9,100 square feet, it would be roughly twice the size of the next largest

business in Joshua Tree. Again, however, the Community Plan did not require the

County to reject any business that would be larger than existing businesses.

Significantly, Policy JT/LU 3.6 was to “[d]iscourage regional commercial facilities

within Joshua Tree. To avoid „big box‟ commercial developments that are out of

character with the rural desert community . . . .” The Project was not a “regional”

commercial facility; there were comparable businesses nearby, in Yucca Valley and

Twentynine Palms. Moreover, it was not a “big box” store, which, the record shows, is

commonly defined as at least 50,000 square feet. Thus, it was not the type of business

that the Community Plan affirmatively discouraged.

In determining consistency with the Community Plan, the County could look at

the relative size of the building, rather than its absolute square footage. The County‟s

applicable development standards allowed a building to occupy up to 80 percent of its net

lot area; the Project would occupy only 14 percent. The same standards allowed a floor

area ratio of 0.5 to 1; the Project would have a floor area ratio of 0.14 to 1. It had larger

setbacks than it was required to have. Thus, the County could reasonably view the

Project as not out of scale in light of standards implementing the Community Plan.

33 The Project was also consistent with Goal JT/ED 4, which provided that

“[c]ommercial uses . . . shall be of small scale as needed to provide goods and services to

residents and travelers, and shall not be of a regional scale,” because, as just mentioned, it

was not a regional store. The County could properly conclude that it was no larger than it

needed to be to provide goods to residents and travelers.

Finally, the Alliance argues that the Project is inconsistent with Policy JT/ED 4.1,

which provided, “Commercial development shall be compatible with the rural

environment, and shall protect the quality of residential living.” However, it does not cite

any evidence that required a finding of inconsistency with this policy. Its claim seems to

be based on the fact that this particular commercial development would be operated by a

large, out-of-town corporation, rather than by locals. Nevertheless, the building was

designed so as “to complement the surrounding community and structures with a rural,

western „Mining Town‟ theme . . . .” There was evidence that it did not significantly

block any scenic views. One could view the Project as “protect[ing] the quality of

residential living” by providing an additional source of useful goods. The County could

reasonably conclude that the Project was not inconsistent with this policy.

34 VI

DISPOSITION

The judgment is reversed. The trial court is directed to enter a new judgment

denying the mandate petition. Dynamic and the County are awarded costs on appeal

against the Alliance.

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

CODRINGTON

J.

35 Filed 7/13/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

JOSHUA TREE DOWNTOWN

BUSINESS ALLIANCE,

E062479

Plaintiff and Appellant, (Super.Ct.No. CIVDS1307794) v.

ORDER CERTIFYING OPINION

COUNTY OF SAN BERNARDINO, FOR PARTIAL PUBLICATION

Defendant and Respondent;

DYNAMIC DEVELOPMENT, LLC,

Real Party in Interest and Appellant.

As requests have been made to this court pursuant to California Rules of Court, rule 8.1120(a) for publication of the nonpublished opinion filed in this matter on June 15, 2016, and as it appears that parts of the opinion meet the standard for publication specified in California Rules of Court, rule 8.1105(c), IT IS HEREBY ORDERED that the opinion is certified for publication with the exception of part IV.

RAMIREZ

P. J.

We concur:

HOLLENHORST

J.

CODRINGTON

J.

1